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People v. Cooper.

2023 COA 113. No. 22CA0914. Postconviction Remedies—Retroactive Application of Changed Legal Standard—Constitutional Rule of Criminal Procedure.

November 30, 2023

Cooper was charged with one count of sexual assault on a child by one in a position of trust based on allegations that he assaulted his stepdaughter. The stepdaughter’s sister witnessed the alleged assault but did not immediately report it because she had told the stepdaughter she would not tell anyone. About a year after the alleged assault, the sister saw Cooper approach her bedroom window and try to look at her while she was changing, which prompted the sister to come forward to report Cooper’s conduct. At a motions hearing, Cooper’s attorney conceded that this evidence could be introduced as res gestae evidence to help explain the delayed disclosure. Cooper was convicted as charged. A court of appeals division affirmed Cooper’s conviction on direct appeal, and the Colorado Supreme Court denied his petition for a writ of certiorari. Cooper then filed a timely Crim. P. 35(c) motion, arguing that his trial and appellate attorneys provided ineffective assistance. Several days before the evidentiary hearing on the motion, Rojas v. People, 2022 CO 8, was announced, which abolished res gestae as a theory of relevance in criminal cases. The court granted Cooper’s request to file supplemental briefing to address Rojas. In his supplemental motion, Cooper argued that Rojas established a new rule of criminal procedure, so it should be applied retroactively to his case pursuant to Teague v. Lane, 489 U.S. 288 (1989), and his conviction should be reversed because inadmissible res gestae testimony was introduced at his trial. The court concluded that Rojas did not constitute a watershed rule of criminal procedure that applied retroactively under Teague, and it denied the postconviction motion in its entirety, including the supplemental motion.

On appeal, Cooper argued that the postconviction court erred by concluding that Rojas did not announce a watershed rule of criminal procedure that should be applied retroactively to his case. Teague only applies to new rules of criminal procedure involving constitutional rights. The court of appeals concluded that Rojas did not announce a new constitutional rule of criminal procedure, so Teague did not apply. Accordingly, CRS § 18-1-410(1)(f)(II) and Rule 35(c)(1) bar Cooper’s postconviction claims seeking retroactive application of Rojas.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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